(dissenting). The defendant was charged with violating two statutes in a single prosecution: (1) sexual contact with a child under 12 (first-degree sexual assault), and (2) sexual contact with an unconscious person (second-degree sexual assault). For each offense, the state introduced evidence of one act — the defendant's single, uninterrupted touching of the child's vagina while the child was sleeping. The defendant was convicted of and punished for violat*502ing each statute. The majority concludes that the defendant's double jeopardy guarantees have not been violated and reverses the decision of the court of appeals. I dissent.
I.
The pronouncements of the United States Supreme Court on double jeopardy are a perplexing puzzle.1 The majority opinion concludes that the Tower courts [in Wisconsin] seemed to be in confusion as to the applicable double jeopardy test." Majority opinion at 493. Any confusion in the circuit courts or the court of appeals will not be dissipated by the majority opinion.2
I disagree with the majority opinion's characterization of the elements only test from Blockburger v. United States, 284 U.S. 299 (1932), as "essentially the same" as the "additional fact," "different fact," or "identical in fact and law" test. Majority opinion at 493 n.8. Our cases distinguish these tests even though we have often stated the tests with imprecise language.
Wisconsin law treats the Blockburger test as an elements only test used to determine whether a given offense is a lesser included offense of another, sec. 939.66 (1), Stats. 1989-90, and to determine whether for double jeopardy purposes the two or more crimes charged are the same offense.3 When applying the elements only test *503we focus "on the statutes defining the offenses, not the facts of a given defendant's activity." State v. Carrington, 134 Wis. 2d 260, 264, 397 N.W.2d 484 (1986). In this case, the majority opinion is apparently applying the Blockburger elements only test in determining whether one crime is the lesser included offense of the other under sec. 939.66 (1) and whether the two crimes charged are the same offense under the double jeopardy guarantee.
The majority cites State v. Rabe, 96 Wis. 2d 48, 291 N.W.2d 809 (1980), and State v. Van Meter, 72 Wis. 2d 754, 242 N.W.2d 206 (1976), in which, unlike the case at bar, the accuseds each faced multiple convictions under a single statutory provision. In these cases the court searches for the legislative intent about the unit of conduct punishable. Furthermore, the court in Rabe and Van Meter applied an additional fact test, not an elements only test, because in applying a single statute the elements that the state needed to prove under each count were identical. To decide whether the state would imper-missibly convict the accuseds multiple times for the same course of conduct in violation of the constitutional guarantee against double jeopardy, the Rabe and Van Meter courts needed to determine whether each charge required proof of an additional fact of the accused's conduct.4 Rabe and Van Meter, resolve a double jeopardy *504issue distinct from the double jeopardy issue in the case at bar and thus do not control this case.
II.
I conclude that in this case the prosecutor could charge and attempt to prove both statutory offenses, but that the defendant would' be punished for only one offense upon conviction. This conclusion comports with the statutes and judicial precedent.
Section 939.65, Stats. 1989-90, provides that "if an act forms the basis for a crime punishable under more than one statutory provision, prosecution may proceed under any or all such provisions." This statute states a rule of pleading and makes clear that the prosecutor may proceed under multiple sections of the criminal code alleging the same conduct under each statute. It does not purport to state the limitations on multiple convictions, sentences, or prosecutions for the same conduct.5
When the same conduct satisfies more than one criminal statute and the court concludes that the legislature intended the accused to be punished only once even though the conduct violates two or more statutes, our cases hold that the circuit court may submit all counts to the fact-finder but the accused is punished only once.6
*505According to United States Supreme Court precedent, in determining the legality of multiple punishments under different statutes in a single prosecution for a single act, the determinative factor is legislative intent. Did the legislature intend one punishment or more than one punishment?7 The state's brief concedes that the *506ultimate issue of legislative intent presented in this case is, at least theoretically, susceptible to more than one philosophical analysis. State's Brief at 29. A commonsense analysis of the sexual assault statutes leads to the conclusion that the legislature intended to punish an accused once for each sexual assault or contact perpetrated on a victim and that the legislature did not intend multiple punishments for the two statutory violations with which the defendant was charged in this case for his single act.
The statutes at issue are silent about multiple punishments for a single act of sexual contact against one victim. To determine legislative intent I must examine the language of the statute, the nature of the proscribed conduct, whether there is a single act or course of conduct, whether the two offenses are significantly different so that they may be viewed as deserving separate punishment, whether the two offenses invade different interests *507of the victim or public, and rules of statutory construction.8
In this case the defendant engaged one time in one form of proscribed conduct against one victim. The interest protected in both statutes is the same — freedom from non-consensual sexual contact. Both statutes deal with a victim whose ability to give informed and meaningful consent to sexual contact is impaired: a victim under 12 years of age; a victim who is unconscious. Nothing in the legislative history of the sexual assault laws demonstrates that the legislature intended to punish a defendant twice for one touching when the victim was under two disabilities which precluded meaningful and informed consent. Applying the rule of strictly construing criminal statutes to safeguard the defendant's rights, or the rule of lenity,9 I conclude that any doubt concerning the legislature's intent should be resolved against turning a single act into an opportunity for multiple punishments. In sum, the language and legislative history of the statutes, the nature of the proscribed conduct, the similarity of the two statutory offenses and their addressing the same interests of the public and the victim, and the rules of statutory construction all lead to the conclusion that the legislature intended one punishment for the two overlapping statutory offenses and that the legislature did not view the offenses as so significantly different as to deserve separate punishments.
*508Over the years the legislature has adopted a multitude of statutes prohibiting the same or overlapping courses of conduct. This multiplicity of statutes governing the same or overlapping conduct gives prosecutors broad discretion in choosing which crimes to charge. The approach taken by the majority, however, changes the legislatively adopted means of facilitating prosecution into a means of punishing accuseds multiple times for the same act. The majority's approach increases the potential for governmental harassment, oppression, and abuse. I do not think the legislature intended to create this outcome. The courts should not cumulate punishments for the accused's single act in the absence of a clear and definitive directive from the legislature.
For the reasons set forth, I dissent.
I am authorized to state that Chief Justice Nathan S. HEFFERNAN joins this dissenting opinion.
See Monroe G. McKay, Double Jeopardy: Are the Pieces the Puzzle?, 23 Washburn L.J. 1 (1983).
For criticism of this state's double jeopardy and multiple punishment decisions, see Note, Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death?, 1990 Wis. L. Rev. 553; Note, Critique of Wisconsin's Lesser Included Offense Rule, 1979 Wis. L. Rev. 896, 896.
State v. Carrington, 134 Wis. 2d 260, 263-64, 397 N.W.2d *503484 (1986); Hagenkord v. State, 100 Wis. 2d 452, 481, 302 N.W.2d 421 (1981); Randolph v. State, 88 Wis. 2d 630, 640, 266 N.W.2d 334 (1978); Note, Multiple Punishment in Wisconsin and the Wolske Decision: Is It Desirable to Permit Two Homicide Convictions for Causing a Single Death?, 1990 Wis. L. Rev. 553, 560 & n.42; Note, Critique of Wisconsin's Lesser Included Offense Rule, 1979 Wis. L. Rev. 896, 896.
In Rabe, reviewing a pretrial order, the court permitted the state to charge an accused with four counts of homicide by intoxi*504cated use of a motor vehicle resulting from the deaths of four people in the same auto accident. In Van Meter, the court upheld two convictions for fleeing police officers, one for eluding Wood County officers and one for eluding Portage County officers in the same car chase.
V Wisconsin Legislative Council Judiciary Committee Report on the Criminal Code, at 52 (1953); State v. Karpinski, 92 Wis. 2d 599, 611, 175 N.W.2d 729 (1979); Frank J. Remington and Allan J. Joseph, Charging, Convicting, and Sentencing the Multiple Criminal Offender, 1961 Wis. L. Rev. 528, 530-31.
[I]f the two counts are submitted to the jury, (1) whether defen*505dant operated a motor vehicle while under the influence of liquor, causing death, and (2) whether defendant operated a motor vehicle in such a reckless and negligent manner as to cause the death — the court should instruct the jury that if it finds the defendant guilty on the first count, it should make no finding on the second, and if it finds him guilty on the second, it should make no finding on the first.
State v. Resler, 262 Wis. 285, 293, 55 N.W.2d 35 (1952).
Section 940.25(1)(a), (b), (c), Stats. 1981-82, authorized the prosecutor to charge the accused with two counts of causing great bodily harm to another human being by operation of a motor vehicle. One count was for operation while under the influence of an intoxicant, and the second count was for operation while having a blood alcohol concentration of 0.10% or more. The statute further authorized the fact-finder to find the accused guilty of both counts. The court concluded that the dual guilty verdicts give rise, however, to only one conviction and one punishment, stating that "although these provisions of sec. 940.25 might be read to indicate that the legislature intended two convictions even if there is only one incident or occurrence, other indicia of legislative intent make it evident that the legislature authorized only one conviction for all purposes ...." State v. Bohacheff, 114 Wis. 2d 402, 412, 338 N.W.2d 466 (1983).
See also Frank J. Remington and Allan J. Joseph, Charging, Convicting, and Sentencing the Multiple Criminal Offender, 1961 Wis. L. Rev. 528, 545-51.
The question of whether two punishments are constitutionally permissible, regardless of whether the two statutes constitute the same offense, depends on whether the legislature intended one punishment or two. The focus is on legislative intent when determining the constitutionality of multiple punishments. Missouri v. *506Hunter, 459 U.S. 359, 368-69 (1983); State v. Kuntz, 160 Wis. 2d 722, 753-54, 467 N.W.2d 531 (1991); State v. Gordon, 111 Wis. 2d 133, 137-38, 330 N.W.2d 564 (1983).
As others have noted, the Supreme Court's formula incorporating state law by reference into the double jeopardy clause is flawed. The Supreme Court has in effect made the constitutional guarantee of double jeopardy irrelevant, superfluous or redundant when it decreed that a court's constitutional analysis of double jeopardy is identical to and derivative from its statutory analysis of legislative intent. Hunter, 459 U.S. at 369-74 (Marshall, J., dissenting); Peter Westen, The Three Faces of Double Jeopardy: Reflections on Government Appeals of Criminal Statutes, 78 Mich. L. Rev. 1001, 1025 (1980). Professor Westen proposes that the double jeopardy clause operate as a presumption against finding that state law intends multiple punishments; the presumption can be overcome by clear and unmistakable evidence that the state law intends the offenses and the punishments to be cumulative. 78 Mich. L. Rev. at 1026.
State v. Kuntz, 160 Wis. 2d 722, 467 N.W.2d 531 (1991); State v. Bohacheff, 114 Wis. 2d 402, 338 N.W.2d 466 (1983); State v. Gordon, 111 Wis. 2d 133, 330 N.W.2d 564 (1983); Missouri v. Hunter, 459 U.S. 359 (1983).
State v. Bohacheff, 114 Wis. 2d 402, 417, 338 N.W.2d 466 (1983); State v. Morris, 108 Wis. 2d 282, 289-90, 322 N.W.2d 264 (1982).